Akron Board of Ed. v. State Board of Ed. of Ohio

• Decision Date: 15 January 1974
• Docket Number: No. 72-2075.,72-2075.
• Citation: 490 F.2d 1285
• Parties: AKRON BOARD OF EDUCATION and Conrad C. Ott, Plaintiffs-Appellants, v. STATE BOARD OF EDUCATION OF OHIO et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

490 F.2d 1285 (1974)

AKRON BOARD OF EDUCATION and Conrad C. Ott, Plaintiffs-Appellants, v. STATE BOARD OF EDUCATION OF OHIO et al., Defendants-Appellees.

No. 72-2075.

United States Court of Appeals, Sixth Circuit.

Argued April 6, 1973.

Decided January 15, 1974.

COPYRIGHT MATERIAL OMITTED

John M. Glenn, Akron, Ohio, for appellants; Edward O. Erickson, Akron, Ohio, on brief.

John F. Ray, Jr., Cleveland, Ohio, on brief for appellees, William R. McClenathen, Akron, Ohio, of counsel.

Before WEICK and EDWARDS, Circuit Judges, and PRATT,^* District Judge.

EDWARDS, Circuit Judge.

Plaintiffs, Akron Board of Education and its Superintendent, Conrad C. Ott, appeal from an order dismissing their complaint. The complaint filed before the United States District Court for the Northern District of Ohio sought an injunction against the Ohio State Board of Education (and its members as individuals) restraining the transferring of an area (Sackett Hills) of the previous jurisdiction of the Akron Board of Education to an adjoining school district. Plaintiff's complaint is founded upon 42 U.S.C. § 1983 (1970), 28 U.S.C. § 1343 (1970), and the Fourteenth Amendment to the United States Constitution. It seeks both a declaratory judgment and injunctive relief.

The complaint alleged:

In the case of the proposed transfer of Sackett Hills, * * * unlawful policies and procedures have resulted in approval of a transfer by the defendant State Board of Education, effect of which will or may be to compel plaintiffs to take action in violation of constitutionally and statutorially sic protected rights of children in the Akron City School District.

12. Under the proposed transfer of Sackett Hills, children attending public schools will be permitted to attend elementary, junior high, and senior high schools which are all-white in composition instead of attending North Senior High School which is approximately 24% black, Jennings Junior High School which is approximately 31% black, Findley Elementary School which is approximately 63% black, and Harris Elementary School, in the case of some students, which is approximately 7% black.

13. Defendants State Board of Education, their defendant members, and the defendant Essex have exercised the authority otherwise given them by law in an unlawful, discriminatory, and arbitrary manner in violation of the Fourteenth Amendment of the United States Constitution and Title 42, United States Code, Sec. 1983, in that:

A. By reason of the practices and policies of said defendants, the plaintiff Akron School Board has purportedly been required to forfeit the Sackett Hills area from the Akron School District, although there has been no failure to meet requirements of state law respecting transportation and education of school age children therein and notwithstanding the absence of any legal basis to impose such a forfeiture even if there had been a failure to meet any such requirements. Such action by said defendants has been taken on the ground that the plaintiff Board has failed to match the standard of transportation offered to children within such area which a suburban school district can allegedly maintain;

B. The policies and practices of said defendants impose a standard of transportation for urban school districts which impose the higher costs upon them than obtain on a per capita basis in suburban school districts notwithstanding the fact that the State of Ohio does not compensate for such difference and that state law does not provide or purport to provide legal authority for the defendant State Board of Education to require the same standard of transportation service;

C. The policies and practices of the Defendant State Board of Education permit the use of a standard of comparative convenience in transportation of children to nonpublic schools as required under the provisions of Revised Code Section 3327.01 to be the basis whereby patrons desiring to send their children to all-white public schools outside an urban district in preference to racially mixed public schools within such a district may do so;

D. The policies and practices of said defendants by failing to adopt lawful standards has resulted in the case of the proposed Sackett Hills transfer from the Akron City School District an official state action to cause children from an all-white area to attend public schools on a basis other than the proximity of their residence thereto for reasons not equally applicable to all.

14. Plaintiffs will suffer immediate and irreparable harm in the event that the defendant class members or their attorney, the defendant McClenathen, file and maintain any action in the state courts seeking to compel the plaintiffs to give effect to the unlawful approval of their detachment petition by the defendant State Board of Education of Ohio. The effect of any such action by said defendants would be to give an evidentiary basis for suit by other patrons from the Akron City School District that children otherwise within the district are assigned to attend public schools by reason of race. Such a suit would require great expense and effort on the part of the plaintiffs to defend and would or might result in an order causing a complete alteration of attendance areas historically established without regard to race. Any such alteration of attendance areas would result in great and incalculable expense and would deprive children in the Akron City School District of educational programs necessarily eliminated or curtailed on account thereof or result in an increase in tax levies for Akron taxpayers, or both.

This is a small case in everything except the legal principles involved. The area, Sackett Hills, which the defendant State Board of Education has approved transferring from the Akron School District to an adjacent suburban school district is small. The number of students involved is only 29 (of whom 6 were attending Akron Public Schools).

The facts alleged by the Akron Board are that without any lawful educational justification, white students are being moved by the transfer from desegregated schools in Akron to all white suburban schools, thereby decreasing the tax money available to the Akron School Board and tending to deprive Akron school students of their constitutional right to attend nonsegregated schools. Obviously one such transfer has a very limited influence upon the rights of students to attend nonsegregated schools. Obviously, also, many such transfers based upon such a precedent could have a disastrous effect.

The legal principle involved is the provision in the Fourteenth Amendment to the Constitution of the United States which prohibits any state from denying any citizen the equal protection of the laws.

Thus far the defendants have filed no answer to this complaint. They moved to dismiss it on the grounds that the complaint stated no claim upon which relief could be granted and that the District Court had no jurisdiction over the action. The District Judge (without, of course, ever reaching the merits of the action) granted the motion to dismiss, holding that the federal court had no jurisdiction because neither of the plaintiffs had standing to sue.

We hold that under the facts alleged and stipulated the plaintiffs have standing to bring this action, that the District Court has jurisdiction to enforce the Fourteenth Amendment, that the defendants, members of the State Board of Education, are not immune from suit, and that in the present posture of this case abstention is neither required nor appropriate.

We note, of course, that the State Board has contended, and presumably will do so before the District Court, that its transfer decision was made on grounds of convenience of transportation and had no racial motivation at all. This may be so, but thus far the State Board has not even filed an answer to allege these contentions and, of course, there has been no federal adjudication of the conflicts of fact.

Standing to sue "is only a rule of practice" (Barrows v. Jackson, 346 U.S. 249, 257, 73 S.Ct. 1031, 1035, 97 L.Ed. 1586 (1953)) designed to enforce the constitutional rule that the United States Courts have jurisdiction only of "Cases" or "Controversies." U.S.Const. art. III, § 2, cl. 1. In its most general form the rule may be stated as holding that no one who is not a member of the class claimed to be offended may bring an action to protect the constitutional rights of such a class. See Barrows v. Jackson, 346 U.S. 249, 255, 73 S.Ct. 1031, 97 L.Ed. 1586 (1953); Coleman v. Miller, 307 U.S. 433, 464-467, 59 S.Ct. 972, 83 L.Ed. 1385 (1939) (Frankfurter, J., separate opinion); Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring). The general rule seeks to guarantee that every suit will truly be an adversary proceeding. Flast v. Cohen, 392 U.S. 83, 101, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968).

Where, however, there is a close relationship between the plaintiffs who seek to bring an action and the class of persons whose constitutional rights are claimed to be violated, standing to sue has frequently been found. NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963); Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); Whitley v. Wilson City Board of Education, 427 F.2d 179 (4th Cir. 1970); Board of Education v. York, 429 F.2d 66 (10th Cir. 1970); Brewer v. Hoxie School District No. 46, 238 F.2d 91 (8th Cir. 1956). Cf. Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972).

In the Society of Sisters case, supra, a private parochial school brought action to enjoin the enforcement of a state law which required all parents to send their children to public schools. The Supreme Court held the challenged act unconstitutional thereby recognizing the right of the plaintiff school to protect the constitutional rights of the pupils of the school and their parents. It is, of...